DANIEL DE-JESUS V. JEFF PREMO, No. 18-35054 (9th Cir. 2019)
Annotate this Case
Download PDF
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAR 13 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DANIEL L. DE-JESUS, Petitioner-Appellant, No. U.S. COURT OF APPEALS 18-35054 D.C. No. 6:16-cv-01563-SI v. MEMORANDUM* JEFF PREMO, Superintendent; OREGON STATE PENITENTIARY, Respondents-Appellees. Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding Argued and Submitted March 8, 2019 Portland, Oregon Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District Judge. At Daniel De-Jesus’s state trial for robbery and possession and delivery of methamphetamine, his attorney did not object to two jury instructions. One concerned the definition of delivery; the other was the uniform “natural and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. probable consequences” instruction, which the Oregon Supreme Court later held misstated state law, State v. Lopez-Minjarez, 260 P.3d 439, 583-84 (Or. 2011). In his federal habeas petition, De-Jesus contends that these failures to object constitute ineffective assistance of counsel. The district court denied the petition, and we affirm. 1. The delivery instruction ran afoul of Sandstrom v. Montana, 442 U.S. 510 (1979), with respect to the “substantial step” element but not as to intent. Given the available evidence that De-Jesus repackaged the stolen methamphetamine in a manner consistent with delivery, counsel’s failure to object to the “substantial step” instruction was not reasonably likely to have influenced the verdict. The Oregon courts therefore permissibly ruled that De-Jesus did not establish ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). 2. The erroneous “natural and probable consequences” instruction was irrelevant to the crimes charged and therefore harmless. Lopez-Minjarez clarified that that instruction could result in harm only where two crimes occurred in succession, so the jury might improperly have found a defendant guilty of the second crime because the defendant intended to aid and abet the first crime. 260 P.3d at 444-45. The district court correctly noted that, in De-Jesus’s case, “no crime preceded the robbery.” Accordingly, “the jury could not have found the 2 [robbery] to have been a natural and probable consequence of an earlier crime that defendant had aided in committing, because there was no earlier crime in the sequence of charged criminal acts. Necessarily, then, the instruction was harmless . . . .” Id. at 455. A fairminded jurist could not fault defense counsel for not objecting to a uniform instruction that had no bearing on her client’s case. See Harrington v. Richter, 562 U.S. 86, 99, 101-102 (2011). The Oregon courts’ denial of De-Jesus’s second ineffective assistance claim was therefore not unreasonable. AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
